The Lincoln county process

[boone]

If for some strange and unlikely reason it became desirable for either brand to label itself as bourbon I believe they could.

Right AGAIN, Chuck

A good while back, I had a very lengthy conversation with alot of folks "in the know" in this industry. I flat out asked them, is Jack Daniels, BOURBON?...The answer (straight up) <font color="red"> Yes, Jack Daniels is bourbon </font> The conversation then led to the statement, "If, Jack Daniels chose to put the word bourbon on their label...they could...but they choose not to".

Bettye Jo

[tdelling]

&gt; There is, by the way, a detailed article by Lew Bryson about the process itself
&gt; in the current issue of Malt Advocate, but it doesn't discuss any of these
&gt; legal questions.

I was really pleasantly surprised by this article. There is Actual Technical
Detail in the article! I loved it! Such articles are usually unsatisfying
for the engineer/geek/technically minded... but this one was deliciously
detailed in terms of the process and what actually goes on. Bravo to Bryson!

Tim Dellinger

[chasking]

I don't know what draft treaty you are referring to...

I found it in Post #24218.

[cowdery]

Very interesting. Thanks. I missed that the first time around but, luckily, it supports my point.

[cowdery]

I had a similar reaction. Lew did what you have to do, which is go there and talk to the people who actually do the work. I agree. Good for him.

You would have loved the tour Jerry Summers gave us of Jim Beam. Thanks again to Bobby Cox for that.

[chasking]

Intrigued, I pulled up the current version of the 27 CFR 5 regs from a legal web site (latest revision: April '04) and as I read them, it is at least possible that the Tennessee whiskies should be required to state that they are bourbons on their labels. Consider: Section 5.22 provides (in relevant part) (yes, I am a lawyer):

<font color="blue">(b) Class 2; whisky. ``Whisky'' is an alcoholic distillate from a fermented mash of grain produced at less than 190[deg] proof in such manner that the distillate possesses the taste, aroma, and characteristics generally attributed to whisky, stored in oak containers (except that corn whisky need not be so stored), and bottled at not less
than 80[deg] proof, and also includes mixtures of such distillates for which no specific standards of identity are prescribed.
(1)(i) ``Bourbon whisky'', ``rye whisky'', ``wheat whisky'', ``malt whisky'', or ``rye malt whisky'' is whisky produced at not exceeding 160[deg] proof from a fermented mash of not less than 51 percent corn, rye, wheat, malted barley, or malted rye grain, respectively, and stored
at not more than 125[deg] proof in charred new oak containers....</font>

It sounds from other posts I've read here, and also from the JD letter, like perhaps at some point in the past a whiskey's designation as bourbon depended on the whiskey having the "taste, aroma, and characteristics generally attributed to" bourbon. But, under the current regs, the "taste, aroma, and characteristics" test is applied only to determine whether something is whiskey. When it comes to determining whether something is bourbon, it is the very mechanical test given in the next paragraph. If the whiskey meets those criteria, it is a bourbon.

There is of course the theory that the "Lincoln County process", by adding flavors to the whiskey, takes it out of the bourbon category. I'm not so sure that is supportable under the current regs. The "flavoring" reg is section 5.23(a)(1), which provides:

<font color="blue">The addition of any coloring, flavoring, or blending materials to any class and type of distilled spirits, except as otherwise provided in this section, alters the class and type thereof and the product shall be appropriately redesignated.</font>

But, "redesignated" to what? Consider this provision of Section 5.22:

<font color="blue">(i) Class 9; flavored brandy, flavored gin, flavored rum, flavored vodka, and flavored whisky. ``Flavored brandy, ``flavored gin,'' ``flavored rum,'' ``flavored vodka,'' and ``flavored whisky,'' are brandy, gin, rum vodka, and whisky, respectively, to which have been added natural flavoring materials, with or without the addition of sugar, and bottled at not less than 60[deg] proof. The name of the predominant flavor shall appear as a part of the designation.</font>

If the Lincoln County process adds flavor, such that the whiskey must be redesignated (i.e., is no longer bourbon), then it appears that under the foregoing section it would have to be redesignated "charcoal flavored whiskey" or "maple flavored whiskey" or something to that effect.

In conjunction with the foregoing regs, consider that under Section 5.35(a),

<font color="blue">Designation of product. The class and type of distilled spirits shall be stated in conformity with Sec. 5.22 if defined therein.</font>

So if a Tennessee whiskey is, by the Section 5.22 definition, a bourbon, then it would have to be labeled as such.

I can think of two ways that the Tennessee whiskeys could exclude themselves from the definition of bourbon: distill at higher than than 160 proof, or barrel at higher than 125 proof. If they were barrelled at 127 proof, for instance, they would not technically fit the definition of bourbon, although the effect would certainly be the same. Does anyone know if they do this? They could also avoid being classified as bourbon by refilling casks. My understanding is that the Tennessee distillers use new casks. However, mixing a small amount of whiskey from a refill cask in with the regular production, while it would probably not alter the character of the final product, would preclude labelling that product as bourbon.

I suppose that, notwithstanding the discussion of flavoring, there is still the argument that the Lincoln County process adds coloring. Addition of coloring also requires reclassification, although to what is less clear. This one seems a bit far-fetched to me, inasmuch as most whiskey encounters charred wood and gains color therefrom.

[cowdery]

The Lincoln County process would not be considered "The addition of any coloring, flavoring, or blending materials." It is a process that removes or alters flavor, but it is not an additive in any sense. This, however, is the issue with "finishes" such as Beam used with Distiller's Masterpiece, although it hasn't really been put to the test. The regs pretty clearly contemplate the "addition" of a "material," which aging in barrels that contain residues of sherry or port may or may not be, but which charcoal filtering certainly is not.

The matter you discuss also has never really been tested. I would argue that all you are really required to do is identify the spirit by general type, i.e., whiskey, rum, tequila, liqueur, brandy, etc. The standards for the narrower classifications of whiskey--rye, bourbon, straight, etc.--were put in place to prevent producers from using those terms to identify products that did not meet those standards. I would go back to the legislative history showing that and argue that they were never intended to require a product to use the narrower classification if it was qualified to do so.

The bottom line is that the question hasn't really been answered through administrative law determination or litigation, so we're all speculating.

As for your questions about whether or not the Tennessee whiskies fail to meet the proof of distillation or proof of entry requirements, I can assure you they do meet them. That, in part, is the curious point. The Tennessee producers have strictly adherred to all the requirements for the straight bourbon designation yet choose not to use it.

Part of the lesson here, I think, is that the federal regulations are not the end all and be all. They were put in place to solve a problem and largely did solve it.

An interesting question this all raises is as follows. I start a distillery here in Chicago and make a product that conforms to the legal standards for "whiskey." It does not, however, conform to the standards for "straight bourbon whiskey." Is there anything that would legally prevent me from calling my product "Tennessee Sour Mash Whiskey"?

[chasking]

Regarding whether you could call your Chicago-distilled product Tennessee Sour Mash Whiskey, there are the following provision in Section 5.22(k):

<font color="blue">(1) Geographical names for distinctive types of distilled spirits...shall not be applied to distilled spirits produced in any other place than the particular region indicated by the name, unless (i) in direct conjunction with the name there appears the word "type" or the word "American" or some other adjective indicating the true place of production, in lettering substantially as conspicuous as such name, and (ii) the distilled spirits to which the name is applied conform to the distilled spirits of that particular region. ... Geographical names for distinctive types of distilled spirits shall be used to designate only distilled spirits conforming to the standard of identity, if any, for such type specified in this section, or if no such standard is so specified, then in accordance with the trade understanding of that distinctive type.</font>

In this context, the question is whether "Tennessee whiskey" is a "distinctive" type. Given the disparity in character between JD and Dickel, it might be tough for them to argue that they are sufficiently like each other and simultaneously different from bourbon to qualify as a "distinctive type of distilled spirit". If they do, you could at least call your product "Tennessee Style Sour Mash Whiskey".

Ironically, if Tennessee whiskey is not a "distinctive style", then you couldn't use the name at all, based on another provision of Section 5.22(k):

<font color="blue"> (3) Geographical names that are not names for distinctive types of distilled spirits, and that have not become generic, shall not be applied to distilled spirits produced in any other place than the particular place or region indicated in the name.</font>

Are you starting up a distillery here in Chicago? I'll work there!

[cowdery]

I'm not starting a distillery, but you're doing a great job as a research assistant.

"Whiskey" is a distinctive type, though not geographical. "Cognac" is an example of a distinctive type of spirit based on a geographical place name. "Tennessee" as a modifier for "whiskey" is not codified in the regs, so the "distinctive type" wording would not apply, but the wording you cite for Section 5.22(k)(3) would apply and prevent me from labeling my Chicago product as "Tennessee Whiskey." In addition, there are truth in advertising laws, independent of the alcohol regs, that probably could be used against me too.

[tdelling]

&gt; You would have loved the tour Jerry Summers gave us of Jim Beam.

Unfortunately, my sister decided to get married on the weekend of
the Bourbon Festival. I can't fault her timing though... she managed
to dodge Charley, Frances, Ivan, and Jeanne.

As always... "perhaps next year".

Tim Dellinger